Proposal for a Council Regulation amending Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs
Date: 2002-03-15
Institutions: European Commission
Subjects: agricultural product, amendment of a law, designation of origin, foodstuff, product designation

30.7.2002

EN

Official Journal of the European Communities

C 181 E/275

Proposal for a Council Regulation amending Regulation (EEC) No 2081/92 on the protection of
geographical indications and designations of origin for agricultural products and foodstuffs

(2002/C 181 E/11)

COM(2002) 139 final — 2002/0066(CNS)

(Submitted by the Commission on 15 March 2002)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 37 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social
Committee,

Having regard to the opinion of the Committee of the Regions,

Whereas:

(1) Annex I

to the Treaty establishing the European
Community (1) lists the products covered by Title II of
the Treaty.

(2) Council Regulation (EEC) No 2081/92 (2) covers neither
viticultural products nor spirit drinks but to plug a gap in
the Community's protection provisions wine vinegar
should be included in the scope defined in its Article 1.

foodstuff

(3) Annex I to Regulation (EEC) No 2081/92 listing the types
that may be registered includes natural
of
mineral and spring waters. Examination of registration
applications for these has revealed several difficulties:
the use of identical names for different waters and of
the Regulation's
covered
invented names not
provisions, and a general finding that these products are
not suitable for registration under the Regulation, notably
in view of the implications of Article 13. These difficulties
have led to many clashes of interest in the course of work
on implementation of the Regulation.

by

(4) Mineral and spring waters are already the subject of
Council Directive 80/777/EEC of 15 July 1980 on
the Member States
approximation of
relating to exploitation and marketing of natural mineral
waters (3). This does not have exactly the same purpose as
Regulation (EEC) No 2081/92 but does provide adequate

laws of

the

(1) OJ C 340, 10.11.1997, p. 303.
(2) OJ L 208, 24.7.1992, p. 1. Regulation last amended by Commission
Regulation (EC) No 2796/2000 (OJ L 324, 21.12.2000, p. 26).
(3) OJ L 229, 30.8.1980, p. 1. Directive last amended by Directive

96/70/EC (OJ L 299, 23.11.1996, p. 26).

regulation at Community level. Names of mineral and
spring waters should not therefore be registered and this
product category should be deleted from Annex I to the
Regulation. Some names have already been registered in
Commission Regulation (EEC) No 1107/96 of 12 June
indications and
1996 on registration of geographical
designations of origin under the procedure set in Article
17 of Council Regulation (EEC) No 2081/92 (4), and to
avoid any injury there should be a five-year transition
period after which these names will no longer be on
the register specified in Article 6(3) of the latter.

(5) To protect

the traditional heritage of Member States'
regulating
producers, provision should be made for
cases of total or partial
identity of geographical names.
These provisions should cover both names meeting the
registration requirements and those not doing so but
utilisation
meeting
requirements.

established

precisely

certain

(6) Article 10 should be amended to refer to standard EN
45011 in such a way that its most recent version is
always applicable.

(7) If after showing good reason a group or a natural or legal
entity wishes to give up the registration of a geographical
indication or denomination of origin it should be deleted
from the Community register.

(8) The Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement 1994, contained in
Annex 1C to the Agreement establishing the World
Trade Organisation) contains detailed provisions on the
and
existence,
enforcement of intellectual property rights.

scope, maintenance

acquisition,

(9) The protection provided by registration under Regulation
(EEC) No 2081/92 is open to third countries' names by
reciprocity and under equivalence conditions as provided
for in Article 12 of that Regulation. That Article should
be supplemented so as to guarantee that the Community
countries
is
registration procedure
meeting those conditions.

available

to the

(4) OJ L 148, 21.6.1996, p. 1. Regulation last amended by Regulation

(EC) No 2703/2000 (OJ L 311, 12.12.2000, p. 25).

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(10) Article 7 of Regulation (EEC) No 2081/92 specifies how
objections are to be made and dealt with. To satisfy the
obligation resulting from Article 22 of
the TRIPS
Agreement it should be made clear that in this matter
nationals of WTO member countries are covered by
these arrangements and that the provisions in question
apply without prejudice to international agreements, as
already specified in Article 12. The right of objection
should be granted to WTO member countries' nationals
with a legitimate interest on the same terms as laid down
in Article 7(4). Compliance with these terms must be
demonstrated in relation to the
the
Community, this being the territory in which protection
granted under the Regulation applies.

territory of

(11) Article 24(5) of the TRIPS Agreement applies not only to
trademarks registered or applied for but also those to
which rights have been acquired through use before a
specified date, notably that of protection of the name in
the country of origin. Article 14(2) of Regulation (EEC)
No 2081/92 should therefore be amended: the reference
date now specified should be changed to the date of
protection in the country of origin or of submission of
the application for registration of the geographical indi-
cation or designation of origin, depending on whether the
the Article 5
name falls under
the reference date
procedure; also in Article 14(1)
the
should become the date of application instead of
date of first publication.

the Article 17 or

(12) Since the measures required for implementation of Regu-
lation (EEC) No 2081/92 are measures of general scope as
specified in Article 2 of Council Decision 1999/468/EC of
28 June 1999 on procedures
exercise of
implementing powers conferred on the Commission (1),
they should be adopted using the regulatory procedure
specified in Article 5 of that Decision.

the

for

(13) The simplified procedure provided for in Article 17 of
Regulation (EEC) No 2081/92 for the registration of
names already protected or established by usage in
Member States does not provide for any right of
objection. For reasons of legal security and transparency,
it should be deleted. By the same logic so also should the
five-year transition period provided for in Article 13(2) in
the case of names registered under Article 17 but without
prejudice to exhaustion of that period in regard to the
names already registered.

(14) Regulation (EEC) No 2081/92 should therefore be

amended as indicated above,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 2081/92 is amended as follows:

(1) OJ L 184, 17.7.1999, p. 23.

1. Article 1(1) is replaced by:

This Regulation sets rules on protection of desig-
‘1.
indications for agri-
nations of origin and geographical
cultural products intended for human consumption listed
in Annex I to the Treaty and for foodstuffs and agricultural
products listed in Annexes I and II respectively to this
Regulation.

It shall not however apply to wine-sector products, except
wine vinegars, or to spirit drinks. This paragraph shall be
without prejudice to the application of Regulation (EC)
No 1493/1999 on the common organisation of
the
market in wine.

this Regulation,
From the date of entry into force of
mineral waters shall no longer be covered by Regulation
(EEC) No 2081/92. As a result, at the end of a transitional
period of five years from the date of entry into force of
this Regulation, names relating to mineral waters already
registered shall be removed from the register provided for
in Article 6(3) of Regulation (EEC) No 2081/92.

Annexes I and II may be amended using the procedure
specified in Article 15.’

2. The last subparagraph of Article 5(5) is deleted.

3. The following Article 5a is added after Article 5:

‘Article 5a

If the application concerns a name that also designates a
geographical area in another Member State or in a third
country recognised under the procedure provided for in
Article 12(3), the country in question shall be consulted
before any decision is taken.

Homonymous names meeting the requirements of
this
Regulation may be registered subject to proper account
being taken of local and traditional usage and the actual
risk of confusion.

Use of such names shall be subject to clear indication of
the country of origin on the labelling.’

4. The last subparagraph of Article 10(3) is replaced by:

‘To be approved by a Member State for the purposes of
this Regulation, private bodies must meet the requirements
set in the latest version of standard EN 45011 in force.’

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5. The following is added to Article 11(4):

(c) other documents on which it has based its assessment.

‘The action taken shall be notified in the Official Journal of
the European Communities.’

6. The following Article 11a is added after Article 11:

3.
The application and all documents forwarded to the
Commission shall be in one of the official Community
languages or accompanied by a translation into one of
the official Community languages.

‘Article 11a

Article 12b

The Commission may cancel registration of a name in
response to a duly substantiated application by the
group concerned transmitted by
that
submitted the original application for registration.

country

the

The Commission shall verify within six months
third
the necessary elements and shall

1.
whether
the
country contains all
inform the country concerned of its conclusions.

registration request

sent by the

Notice of cancellation shall be given in the Official Journal
of the European Communities.’

If the Commission:

7. In Article 12, the second indent of paragraph 1 is replaced

by the following:

‘— the

third

country

inspection
arrangements and a right to objection equivalent to
those laid down in this Regulation,’.

concerned

has

8. In Article 12, the following paragraph is added:

‘3.
The Commission may examine, in accordance with
the procedure laid down in Article 15 and at the request
of the country concerned, whether a third country satisfies
the
conditions within the meaning of
paragraph 1 above as a result of its national legislation.
Where the Commission decision is in the affirmative, the
procedure set in Article 12a shall apply.’

equivalence

9. The following Articles 12a to 12d are added after Article

12:

‘Article 12a

this Regulation it

1.
In the case provided for in Article 12(3), if a group
or a physical or legal entity as referred to in Article 5(1)
and (2) in a third country wishes to have a name registered
under
registration
application to the authorities in the country in which
the geographical area is located. Applications must be
accompanied by the specification referred to in Article 4
for each name.

send a

shall

2.
If that third country deems the requirements of this
Regulation to be satisfied it shall transmit the registration
application to the Commission accompanied by:

(a) a description of the legal provisions and the usage on
the basis of which the designation of origin or the
indication is protected or established in
geographical
the country,

(b) a declaration that the structures provided for in Article

10 are established on its territory, and

(a) concludes that the name satisfies the conditions for
protection,
application in
shall publish the
accordance with Article 6(2). Prior to publication the
Commission may ask the Committee provided for in
Article 15 for its opinion;

it

the name does not

that
for protection,
the
in

the
(b) concludes
after
conditions
the
country
consulting
application,
procedure
accordance with
provided for in Article 15, not to proceed with publi-
cation as provided for in (a) above.

shall decide,
transmitted

it
having

satisfy

the

to the

concern may object

the date of publication as
2. Within six months of
in paragraph 1(a), any person with a
provided for
legitimate
application
published in accordance with paragraph 1(a) on the
following terms: Where the objection comes
from a
the European Union or a WTO
Member State of
member, Article 7(1),
and (3) or Article 12d
respectively shall apply. Where it comes from a third-
country national meeting the equivalence conditions of
Article 12(3), a duly substantiated statement of objection
shall be addressed to the country in which he or she
resides or is established, which shall forward it to the
Commission.

(2)

The statement of objection and all documents forwarded
to the Commission shall be in one of
the official
Community languages or accompanied by a translation
into one of the official Community languages.

The Commission shall examine admissibility in
3.
accordance with the criteria set out
in Article 7(4).
Those criteria must be demonstrated in regard to the
territory of
the Community. Where one or more
objections are admissible the Commission shall adopt a
decision in accordance with the procedure laid down in
Article 15 after consulting the country which transmitted
the application, taking account of traditional fair usage and
the actual risk of confusion on Community territory. If the
decision is to proceed with registration the name shall be
entered in the register provided for in Article 6(3) and
published in accordance with Article 6(4).

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If the Commission receives no statement of objection
4.
it shall enter the name(s)
in question in the register
provided for in Article 6(3) and publish the name(s) as
provided for in Article 6(4).

Article 12c

The group or physical or legal entity referred to in Article
5(1) and (2) may request amendment of the specification
for a name registered under Article 12a, in particular to
take account of the development of scientific and technical
knowledge or to revise the geographical zone.

The procedure in accordance with Articles 12a and 12b
shall apply.

However, the Commission may decide, in accordance with
the Article 15 procedure, not
to apply the procedure
provided for in Articles 12a and 12b if the amendment
is of a minor nature.

(b) Paragraph 4 is replaced by the following:

‘4.
In the case of names for which registration has
been applied for under Article 5 or Article 12a,
provision may be made for a maximum transitional
period of
five years under Article 7(5)(b) or under
Articles 12b(3) or 12d(3), solely where a statement
of objection has been declared admissible on the
ground that
the registration of the proposed name
would jeopardise the existence of an entirely or
partly homonymous name or
existence of
products which have been legally on the market for
at least five years preceding the date of the publication
provided for in Article 6(2).

the

undertakings

Such transitional period may be provided for only
where
the
have
products in question by using the names in question
continuously for at least five years preceding the date
of the publication provided for in Article 6(2).’

legally marketed

Article 12d

(c) The following paragraph 5 is added:

a

to

relating

Journal of

1. Within six months of the date of the notice in the
the European Communities specified in
Official
Article 6(2)
application
registration
submitted by a Member State, any legitimately concerned
natural or legal entity that is a national of a WTO member
country or of a third country recognised under
the
procedure provided for in Article 12(3) may object to
the proposed registration by sending a duly substantiated
statement to the member country in which they reside or
are established, which shall
it, made out or
translated into a Community language, to the Commission.
Member States shall ensure that all persons belonging to
WTO member countries or a third country recognised
under the procedure provided for in Article 12(3) who
can demonstrate a legitimate economic interest are auth-
orised to consult the application.

transmit

2.
The Commission shall examine the admissibility of
objections on the terms of Article 7(4). Admissibility must
be demonstrated in regard to the
the
Community.

territory of

3.
If an objection is admissible the Commission shall,
after consulting the country that transmitted the objection,
adopt a decision using the procedure specified in Article
15 that takes account of traditional fair usage and the
actual risk of confusion.
the decision is to proceed
If
with registration, publication shall be made in line with
Article 6(4).’

10. Article 13 is amended as follows:

(a) Paragraph 2 is deleted.

‘5.
The Commission may decide to allow, under the
procedure provided for in Article 15, the co-existence
of a registered name and a name designating a place in
a Member State of the European Union or in a third
country recognised under the procedure provided for
in Article 12(3) where that name is identical to the
registered
following
name,
conditions are met:

provided

that

the

— the identical name has been in legal use on
Community territory consistently and equitably
for at least 25 years prior to the entry into force
of Regulation (EEC) No 2081/92, and

— it is shown that the purpose of its use has not at
any time been to profit from the reputation of the
registered name and that the public has not been
nor could be misled as to the true origin of the
product, and

— the problem resulting from the identical names was

raised before registration of the name.

The registered name and the identical name concerned
may co-exist for a period not exceeding 15 years.

Use of the geographical name concerned shall be auth-
orised only where the country of origin is clearly and
visibly indicated on the label.’

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11. Article 14 is amended as follows:

(a) Paragraph 1 is replaced by:

‘1. Where a designation of origin or geographical
indication is registered under
this Regulation, any
application for registration of a trademark that is for
a product of the same type and use of which will
the situations indicated in Article
engender one of
13 shall be
the date of
refused if made after
submission to the Commission of the application for
registration
or
geographical indication.

designation

origin

the

of

of

Council Regulation (EC) No 40/94 of 20 December
1993 on the Community trademark (2).
___________
(1) OJ L 40, 11.2.1989, p. 1.
(2) OJ L 11, 14.1.1994, p. 1.’

12. Article 15 is replaced by:

‘Article 15

1.
The Commission shall be assisted by the Committee
on Designations of Origin and Geographical Indications
composed of Member States' representatives and chaired
by a Commission representative.

Trademarks
subparagraph shall be invalidated.’

registered

in

breach

of

the

first

2.
In cases where this paragraph applies, the regulatory
procedure set out in Article 5 of Decision 1999/468/EC
shall be used. Article 7(3) of the latter shall apply.

(b) Paragraph 2 is replaced by:

‘2. With due regard to Community law, a trademark
the use of which engenders one of
the situations
indicated in Article 13 and which has been registered,
or established by use if that possibility is provided for
by the legislation concerned, in good faith within the
territory of the Community, before either the date of
protection in the country of origin or the date of
submission to the Commission of the application for
registration
or
of
indication, may continue to be used
geographical
notwithstanding the registration of a designation of
indication, provided that no
origin or geographical
revocation exist as
grounds
for
specified
89/104/EEC of
21 December 1988 to approximate the laws of the
and/or
Member

by Council Directive

to trademarks (1)

invalidity or

designation

relating

origin

States

the

its

of

The period provided for in Article 5(6) of Decision

3.
1999/468/EC shall be three months.

4.
The Committee may examine any other matter put
to it by its Chairman on his own initiative or at the
request of a Member State's representative.’

13. Article 17 is deleted.

Article 2

This Regulation shall enter into force on the seventh day
following its publication in the Official Journal of the European
Communities.

This Regulation shall be binding in its entirety and directly
applicable in all Member States.